R v Humphrys

Case [2018] SASCFC 69

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HUMPHRYS

[2018] SASCFC 69

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)

25 June 2018

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - AS OF RIGHT

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE

Appeal brought as of right by the Director of Public Prosecutions (SA) against a subsequent decision of another Judge of this Court dated 27 March 2018 to order the release on licence of the respondent, Mr Humphrys, on terms and conditions determined by the Parole Board pursuant to s 24 of the Criminal Law (Sentencing) Act 1988 (SA). The respondent was detained until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) by an order of a Judge of this Court made on 9 July 2009 after finding that the respondent was capable, but unwilling, to control his sexual instincts.

Held, per Kourakis CJ (Vanstone and Nicholson JJ agreeing), dismissing the appeal:

1.     The Judge had regard to all of the risks identified in the material before her (at [4]).

2.     The Judge's reasons were adequate having regard to the evidence and the forensic issues which her Honour was asked to resolve (at [6]).

3.    The Judge was not bound to consider separately a risk that fell within the generic risk of Mr Humphrys coming into an opportunity to re-offend when that particular risk was neither identified in the Offender Management Program matrix nor the subject matter of submissions or evidence (at [55]).

4.    The Judge expressly adverted to the psychiatric opinions on the respondent’s prognosis and accepted their opinions in that there was some, albeit very guarded, prospect for improvement in his willingness to control his sexual instincts if he were to be released (at [5] and [56]-[58]).

Criminal Law (Sentencing) Act 1988 (SA) (repealed) s 23, s 24; Sentencing Act 2017 (SA) ; UN General Assembly, International Covenant on Civil and Political Rights 16 December 1966, United Nations, Treaty Series, vol. 999, p. 17; UN General Assembly, Universal Declaration of Human Rights 10 December 1948, 217 A (III), referred to.
R v Schuster (2016) 125 SASR 388; R v Humphrys [2018] SASC 39, applied.

WORDS AND PHRASES CONSIDERED/DEFINED

"release on licence", "sentences of an indeterminate duration"

R v HUMPHRYS
[2018] SASCFC 69

Court of Criminal Appeal:       Kourakis CJ, Vanstone and Nicholson JJ

  1. KOURAKIS CJ: The respondent, Mr Colin Humphrys, was detained until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) [1] (the Sentencing Act) by order of a Judge of this Court made on 9 July 2009 after finding that Mr Humphrys was capable, but unwilling, to control his sexual instincts.…

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AGLC
R v Humphrys [2018] SASCFC 69
Case
[2018] SASCFC 69
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Humphrys against a decision of the Supreme Court of South Australia. The appeal concerned the terms of a post-custodial order made against Mr Humphrys following his conviction for sexual offences.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the Supreme Court had the power to make a post-custodial order releasing Mr Humphrys on licence, and if so, on what conditions. This involved an examination of the relevant provisions of the Criminal Law Sentencing Act 1988 (SA) and the interpretation of the court's sentencing powers in relation to offenders who pose a significant risk of reoffending.

The Court considered extensive psychiatric evidence regarding Mr Humphrys' risk of reoffending. While acknowledging some apparent improvement in his understanding of his offending and the power dynamics involved, the psychiatrists noted persistent difficulties in his appreciation of the emotional impact of his offences, a tendency to rationalise and minimise his past conduct, and a continued, albeit perhaps not immediate, risk of reoffending. The Court reasoned that the legislation permitted the imposition of a licence with conditions designed to manage such risks, even where the offender had not yet demonstrated complete rehabilitation. The Court's power to impose such conditions was aimed at protecting the public while allowing for the possibility of rehabilitation.

The Full Court ordered that Mr Humphrys be released on licence, subject to conditions including supervision, monitoring, and participation in sex offender treatment programs. The specific conditions were tailored to address the identified risks and the need for ongoing assessment and support.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Humphrys was born on 28 December 1951. As a child he was physically abused by his parents. Mr Humphrys claims that he was, himself, sexually abused by adults throughout his childhood. He left school at age 15. He worked in a boot making workshop and as a sewing machine mechanic. He completed an apprenticeship as a baker at age 18. He enlisted but was discharged from National Service on the ground of his homosexuality. He then moved to Adelaide and later Melbourne and Sydney, adopting a peripatetic lifestyle. As an adult he has had intermittent employment as a baker and in hospitality, but it has been frequently interrupted by terms of imprisonment. The psychiatric evidence The Judge received reports from two psychiatrists, Dr William Brereton and Dr Ian Jennings. I set out below the conclusions reached by Dr Brereton in his report dated 19 October 2015 with my underlining of its salient aspects:6.1… He was clear that he should no longer try to justify what he did or dismiss assessments of his risk because of mistakes of minor detail. Mr Humphrys was able to express a better understanding of the power imbalance involved in an adult having a sexual relationship with a child. Mr Humphrys appeared to accept that he does represent an ongoing risk and will need professional support, therapy and monitoring if released.6.2I accepted Mr Humphrys’ report of a shift in thinking; he appeared earnest. However I am mindful of the fact that he has persistently offended in the community and shown problematic attitudes regarding his offending that have been entrenched for many years. I cannot rule out the possibility he has simply developed a better understanding of the reservations expressed in reports about his presentation and used that to present himself in a better light. I believe there is value in his having further sex offender treatment in prison or in the community to build on the apparent improvement in his outlook. He has expressed concern about unhelpful aspects of groups he has attended (4.13) and I believe he should be assessed for 1:1 specialist therapy or, if his concerns are thought invalid (e.g. a form of avoidance), further group therapy. I am troubled that an individual may be detained indefinitely until showing improvement in risk but then have difficulty accessing help to moderate that risk.6.3Mr Humphrys still has a great deal of difficulty discussing personal sexual matters which indicates that, although he reports he understands the importance of talking to professional if he were to have thoughts or urges to offend, in practise I believe he would find this difficult (both in terms of his recognition of aberrant thoughts and his ability to then report or discuss them).6.4Mr Humphrys improvement in his cognitive distortions appears rudimentary. While able to articulate that justifying his offending is wrong, he still has difficulty understanding the potential effects of his offending against children from an emotional perspective. He accepts his offending is wrong and has caused suffering but his appreciation of that suffering is limited (e.g. 4.9 & 4.10). Mr Humphrys [sic] still manifests a tendency to try and rationalise (e.g. 4.12) and minimise (e.g. 4.14 & 4.15) his offending.6.5I remain sceptical of Mr Humphrys’ assertion that he does not have any libido and, with persistent questioning, he was able to describe circumstances in which he experiences sexual urges (4.24). With regards to his risk, I am not reassured by Mr Humphrys’ assertion that he is no longer able to function sexually. It is not a prerequisite for sexual offending in any case.6.6In terms of Section 23 of the Criminal Law Sentencing Act, I remain of the opinion that there is significant risk that Mr Humphrys would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts.6.7I remain of the opinion that Mr Humphrys is a high risk of reoffending. However I believe he is unlikely to offend immediately on release from prison and that his risk could be greatly reduced with treatment, monitoring and supervision in the community (please see paragraphs 13.16 and 13.17 of my previous report).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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